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Court of AppealAllowedCivil Application (not fully stated in judgment)· [1984] KECA 70 (KLR)

Ochieng v Ranmal Merag Ltd [1984] KECA 70 (KLR)

Court of Appeal of Kenya
10 December 1984
1,715 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can revive an appeal that was struck out, but will attach strict conditions, including service on anyone whose property or interests are affected.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (Hancox JA) on a notice of motion seeking leave to file an intended appeal out of time under rule 4 of the Court of Appeal Rules (cap 9). The intended appeal was against a decision of Schofield J of November 2, 1983 dismissing an application to set aside the proposed sale of the applicant's property, Bukhayo/Mundika/1525, sold in execution of a default judgment on a dishonoured cheque for Kshs 99,192. A prior appeal had been struck out on technical grounds; relying on Belinda Murai v Amos Wainaina, the court confirmed that striking out is not dismissal and that it retained jurisdiction to entertain a fresh extension application. The respondent opposed, arguing there was no explanation for the delay of roughly four and a half to six months, that the applicant had engaged in delaying tactics and defied orders to deposit rents, and that the auction purchaser was a person directly affected requiring service. The court agreed the purchaser had to be served, following Taracisio Githaiga Ruthibo v Mbuthia Nyingi. Although the explanation for delay was inadequate and no certificate under the proviso to rule 81(1) was produced, the judge, 'after much hesitation', granted a short extension of time to January 7, 1985, conditioned on rendering certified rent accounts, depositing monies in court, paying the costs of the application, and serving the purchaser, with automatic dismissal in default of compliance.

Key legal issues

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01

Jurisdiction to reinstate a struck-out appeal

Holding

The Court has jurisdiction under rule 4 to entertain an application for extension of time to reinstate an appeal that has been struck out, since striking out is not dismissal.

Reasoning

The applicant's appeal had been struck out on technical grounds including the condition of the record and late institution. Relying on the ruling of Law JA in Belinda Murai & Others v Amos Wainaina, later upheld by the full court, striking out does not equal dismissal, so the Court could entertain the fresh extension application despite the striking-out order.

p. 1
02

Service on a person directly affected

Holding

The good-faith purchaser of the auctioned property is a person directly affected by the intended appeal and must be served with the notice of appeal and the application.

Reasoning

Following Taracisio Githaiga Ruthibo v Mbuthia Nyingi, where a judgment-debtor whose property was under attachment was held directly affected, the court reasoned that setting aside the sale on a successful appeal would affect the purchaser to a considerable degree, even though he was not party to the original proceedings, attracting rule 76(1) service.

p. 2
03

Explanation for delay and conditional extension

Holding

The extension of time was granted despite the applicant's fault and delaying tactics, but on strict conditions with automatic dismissal in default.

Reasoning

The court found no satisfactory explanation for the delay of four and a half to six months, no certificate under the proviso to rule 81(1), and a history of non-compliance with orders. Nevertheless, since the appeal had never been heard on merits, discretion was exercised in favour of a short, conditional extension requiring accounting for rents, deposit in court, payment of costs, and service on the purchaser.

p. 3

Legal principles established

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  • The striking out of an appeal does not amount to a dismissal, and the Court retains jurisdiction to entertain an application for extension of time to reinstate an appeal that has been struck out.
  • A judgment-debtor or purchaser whose interest is the subject matter of an appeal is a person directly affected by the appeal and must be served with the notice of appeal and the application.
  • The substantive rule providing for the power sought should appear in the heading of a Notice of Motion; the general enabling rule is surplusage.
  • Although 'sufficient reason' is no longer required under rule 4 as modified, some explanation for the delay in instituting an appeal is still due.

Court orders

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  1. 1.Extension of time for instituting the appeal until 28 days from the date of the ruling, that is January 7, 1985
  2. 2.The applicant shall, before that date, render to the respondent certified true accounts of all monies received by way of rents in respect of Bukhayo/Mundika/1525 since the court order requiring deposit, and deposit that sum in court by the said date
  3. 3.The applicant must pay the costs of the application within twenty-eight days of taxation thereof
  4. 4.The applicant must serve a copy of the notice of appeal and of the application on the purchaser of the property by January 7, 1985
  5. 5.In default of compliance with any of these conditions the application shall stand dismissed
On appeal from
High Court of Kenya
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (cap 9) - application for extension of time to institute an appeal under rule 81(1)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ochieng v Ranmal Merag Ltd [1984] KECA 70 (KLR)", Case Analysis (1984). Civil Application (not fully stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/70/eng@1984-12-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.